The court affirmed the doctrine of continuing wrongs in pension-related disputes, preventing recovery beyond statutory limits when no fraud is involved.

ORDER

AS PER : AJAY PRATAP SINGH, MEMBER [JUDICIAL]

M.A. No.499/2023

1. Misc. Application No.499/2023 has been filed to condone delay in filing of the present OA.

2. Grievance of the applicant as projected by Shri M.P. Dixit, learned counsel for applicant challenging order dated 18.03.2008, whereby two increment drawn from 01.01.1986 to 31.03.2008 now on verge of retirement being ignored for the purpose of pension calculation. So also vide order dated 09.01.2009 on audit objection pay-refixed, revised and reduced to ₹19,200/- on date of retirement, whereas last drawn pay was ₹19,600/-. So also respondents vide order dated 12.03.2009 sanctioned retirement/death gratuity and effected recovery to tune of ₹1,58,344/-.

3. Shri M.P. Dixit, learned counsel for applicant contended that applicant basic pay has been reduced at fag end of service and recovery effected without any misrepresentation revised pay as on 01.01.1986 was found to be irregularly drawn two increment by misinterpretation of Note-3 below Rule 7 of CCS (RP) Rules, 1986, pension and pensionary benefits fixed at reduced revised pay, whereas as per Rule 59(b)(iii) of CCS (Pension) Rules, 1972 (Hereinafter for short referred as Rules, 1972), there is statutory bar to verify the correctness of emoluments for the period of 24 months only preceding the date of retirement and not for any period prior to that date.

4. Shri M.P. Dixit also placed much emphasis on law laid down by Hon’ble Supreme Court in case of M.R. Gupta versus Union of India, reported in (1995) 5 SCC 628, wrong fixation of pay, grievance held to be a continuing wrong giving rise to a recurring cause of action every month and claim to extent of proper pay fixation not barred by limitation. So also in case S.R. Bhanrale versus Union of India, 1996 SCC (L&S) 1384, their Lordships held that amount fell due on date of retirement was wrongly withheld improper on Union of India to plead bar of limitation against employee claim.

5. Shri M.P. Dixit, also placed heavy reliance on law laid down by Hon’ble High Court in case of Ashok Kumar Jha versus State of Bihar, 2019(I)PLJR 361, their Lordships relied on the Apex Court judgment in case of State of M.P. Versus Yogendra Shrivastava, (2012) 12 SCC 538 wherein issue relates to payment of fixation of salary or any allowance, challenge not barred by limitation as denial of benefits occurs every month giving rise to a fresh cause of action based on continuing wrong, error may be committed at time of appointment, principle of recurring and successive wrongs would apply.

6. Shri M.P. Dixit, learned counsel for applicant also buttressed his submissions by placing reliance on precedent laid down by Hon’ble Supreme Court in case of Union of India and others versus Tarsen Singh (2008) 8 SCC 648 held that remedy sought by an DA/WP normally belated claim rejected on ground of delay and latches, one of exception to the said rule is cases relating to a continuing wrong, service related claim is based on continuing wrong relief can be granted even if there is a long delay in seeking remedy on reference to date of continuing wrong, creating source of injury, issue related to payment or re-fixation of pay or pension relief may be granted in spite of delay as it does not affect the rights of third parties.

7. Shri H.P. Singh, learned Senior Central Government Standing Counsel for respondents No.1 & 2 along with Shri Rohit Mishra, learned counsel appearing for respondents No.3 to 6 vociferously canvassed that there is delay of 15 years in filing OA. The cause of action arose on 18.03.2008 and OA filed on 25.07.2023 hopelessly barred by limitation prescribed under Section-21 of the Administrative Tribunals, Act 1985 and prays to dismiss the O.A